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Copyright

Matters!

Some Key
Questions & Answers
for Teachers

th

Edition

Wanda Noel & Jordan Snel,


Barristers and Solicitors

2016
Council of Ministers of Education, Canada
Canadian School Boards Association
Canadian Teachers Federation
This document may be freely reproduced
without obtaining the permission of the authors,
provided that no changes whatsoever are made
to the text.
Available at www.cmec.ca, www.cdnsba.org, and
www.ctf-fce.ca.
ISBN: 978-0-88987-236-3

Canadian Teachers Federation


Fdration canadienne des enseignantes et des enseignants

TABLE OF CONTENTS
1.

What is the purpose of this booklet?...........................................................1

2. Why is copyright important?...........................................................................1


3. What is fair dealing?...........................................................................................2
4. Does fair dealing permit the making of a digital copy from a print
source?......................................................................................................................4
5. Can teachers copy or post an entire musical score or does the
10 per cent limit in the Fair Dealing Guidelines apply?........................4
6. Can a teacher copy for instruction?............................................................5
7. Can a teacher copy materials intended for one-time use?................5
8. Can a teacher copy for tests and examinations?...................................6
9. Can teachers and students use statutes, regulations, and
court decisions?....................................................................................................6
10. What rights do students with perceptual disabilities have?.............7
11. What rights do school libraries have?.........................................................8
12. Can teachers play a sound recording or turn on a radio for
students to listen to, or turn on a television for students
to watch?.................................................................................................................9
13. Can students perform a work protected by copyright, such as
a play, on school premises?...........................................................................10
14. Can music be performed without the copyright owners
permission?...........................................................................................................10
15. Can students and teachers use copyright-protected works to
create new works?............................................................................................. 14

16. Can teachers copy programs from radio or television?.................... 15


17. Can teachers show an audiovisual work (such as a DVD or
video) on school premises without infringing copyright?............... 15
18. Can teachers copy an audiovisual work at home and show it in
the classroom?.................................................................................................... 17
19. Can lessons be streamed live to students or recorded and
made available on-line for students at a time of their
choosing?.............................................................................................................. 17
20. Can teachers copy computer software for educational use?........ 18
21. Can teachers and students copy from the Internet?......................... 19
22. Can teachers and students break digital locks to use
copyright-protected materials they have the legal right to
use?.........................................................................................................................20
23. Are student-created works protected by copyright?.......................20
24. Where can I get more information on copyright?................................ 21

Introduction
The publication of this 4th Edition of Copyright Matters! takes into
account key changes that have occurred in the area of copyright
since the 3rd Edition, published in 2012. Copyright law continues
to evolve in response to existing and emerging technologies,
international agreements, and the need for reasonable balance
between users and creators of copyright-protected works.
We hope that teachers will continue to find Copyright Matters! a
valuable tool in acquainting themselves with basic copyright rules.
This booklet is a starting point for increasing the awareness of your
rights and obligations, as a teacher, in selecting and using copyrightprotected materials at your educational institution.
The authors have sought to simplify a very complex subject. The
booklet is not a substitute for legal advice, which should be sought
in cases where the application of general principles is unclear.

1. What is the purpose of this booklet?

This booklet gives teachers user-friendly information on copyright law,


covering items from the Canadian Copyright Act and its regulations,
contractual and tariff arrangements with copyright collectives, and
court decisions. This booklet is available in print and on-line. The online version is updated as changes in the copyright law take place. It
provides information about copyright law and copyright collectives and
how they relate to the use of resources on and off school premises.
More detailed information is available from many printed sources, from
the Internet, and from your ministry or department of education. A list
of sources appears at the end of this booklet. Education departments
and ministries, as well as school boards across the country, encourage
awareness of and respect for copyright in our education systems.

2. Why is copyright important?

Just as you would want to protect anything that you own, creators
want to protect their works. As students, we were all taught the value
of original thinking and the importance of not plagiarizing the works
of others. Since teachers use copyright-protected materials as well
as educate the copyright owners and users of tomorrow, they have
a unique responsibility to set the right example. The works of others
should not be used without their permission unless the use is permitted
by the Copyright Act. Teachers must be cognizant of the copyright
status of resource materials in their possession.

Copyright Matters!

3. What is fair dealing?

The Copyright Act provides that it is not an infringement of copyright to


deal with a work for the purposes of research, private study, criticism,
review, news reporting, education, satire, and parody, provided the
dealing is fair.
The following guidelines describe the activities that are permitted
under fair dealing in non-profit K12 schools and provide reasonable
safeguards for the owners of copyright-protected works in accordance
with the Copyright Act and decisions of the Supreme Court of Canada.
FAIR DEALING GUIDELINES
1.

Teachers, instructors, professors, and staff members in nonprofit educational institutions may communicate and reproduce,
in paper or electronic form, short excerpts from a copyrightprotected work for the purposes of research, private study,
criticism, review, news reporting, education, satire, and parody.

2. Copying or communicating short excerpts from a copyrightprotected work under these Fair Dealing Guidelines for the
purpose of news reporting, criticism, or review should mention
the source and, if given in the source, the name of the author or
creator of the work.
3. A single copy of a short excerpt from a copyright-protected work
may be provided or communicated to each student enrolled in a
class or course
a.

as a class handout;

b.

as a posting to a learning or course-management system that


is password protected or otherwise restricted to students of
a school or postsecondary educational institution;

c.

as part of a course pack.

Copyright Matters!

4. A short excerpt means:


a.

up to 10 per cent of a copyright-protected work (including


a literary work, musical score, sound recording, and an
audiovisual work);

b.

one chapter from a book;

c.

a single article from a periodical;

d.

an entire artistic work (including a painting, print, photograph,


diagram, drawing, map, chart, and plan) from a copyrightprotected work containing other artistic works;

e.

an entire newspaper article or page;

f.

an entire single poem or musical score from a copyrightprotected work containing other poems or musical scores;

g.

an entire entry from an encyclopedia, annotated bibliography,


dictionary, or similar reference work.

5. Copying or communicating multiple short excerpts from the


same copyright-protected work with the intention of copying or
communicating substantially the entire work is prohibited.
6. Copying or communicating that exceeds the limits in these Fair
Dealing Guidelines may be referred to a supervisor or other
person designated by the educational institution for evaluation.
An evaluation of whether the proposed copying or communication
is permitted under fair dealing will be made based on all relevant
circumstances.
7. Any fee charged by the educational institution for communicating
or copying a short excerpt from a copyright-protected work must
be intended to cover only the costs of the institution, including
overhead costs.

Copyright Matters!

4. Does fair dealing permit the

making of a digital copy from a


print source?

Yes, as long as the copying is within the rules set out in the Fair Dealing
Guidelines.

5. Can teachers copy or post an entire


musical score or does the 10 per
cent limit in the Fair Dealing
Guidelines apply?

Musical scores are usually sold individually that is, one musical work
at a time. The 10 per cent limit applies, and a teacher may copy 10 per
cent of a musical score under fair dealing.

Music is also contained in music books. An example is a music book


containing several musical works. For such a music book, one may copy
10 per cent or one musical work in the book because it contains other
musical scores. See 4(f) of the Fair Dealing Guidelines.

Copyright Matters!

6. Can a teacher copy for instruction?

A teacher can copy (or take any other necessary action) to display a
work protected by copyright. This permits the use of whiteboards and
similar tools, overhead projection using a device such as an LCD screen,
overhead, opaque, or slide projector, provided the work is used for the
purpose of education and training and is not already commercially
available in a medium that is appropriate for this purpose.

7. Can a teacher copy materials


intended for one-time use?

No. Copying, scanning, or printing materials intended for one-time use


is strictly prohibited.
Materials intended for one-time use are workbooks and exercise books
into which a student records answers. These are materials created and
intended for each student to have his or her own copy. Once a student
completes the answers, these materials are of no use to another student.
Any copying from materials intended for one-time use exposes the
person making the copy, the teacher, the school, and the school board
to liability for copyright infringement.
This prohibition does not apply to reproducibles. A reproducible is
not intended for one-time use, but is sold or provided with the rights
holders authorization to reproduce it for educational use.

Copyright Matters!

8. Can a teacher copy for tests and


examinations?

Yes. Teachers in Canada may copy, translate, communicate


electronically, show, or play any copyright-protected work for a test or
examination, provided the work is not already commercially available in
an appropriate medium for the purpose of a test or examination.

9. Can teachers and students use

statutes, regulations, and court


decisions?

Teachers and students can copy and communicate the text of federal,
provincial, and territorial statutes, regulations, and judicial decisions
for educational purposes from every province and territory except
Manitoba, Quebec, and Nunavut.

Copyright Matters!

10. What rights do students with


perceptual disabilities have?

Students with perceptual disabilities, including blind and visually


impaired students as well as students with learning disabilities
and other physical disabilities, are provided with alternative
formats through production centres scattered across Canada.
The alternative formats may include audiobooks, Braille, and
e-text.

Students, and educational institutions on behalf of students,


may make a copy in an alternative format of a literary, dramatic,
musical, or artistic work (but not an audiovisual work) in a format
designed for a person with a perceptual disability.

Translation, adaptation, and performance in public for the


purpose of serving students with perceptual disabilities, as long
as the work is not already commercially available in that format,
are permitted.

Educational institutions may not make a large-print book for a


student with a perceptual disability without permission from
the copyright owner.

Copyright Matters!

11. What rights do school libraries


have?

School libraries can:

make a copy for the purpose of cataloguing, internal record


keeping, for insurance purposes, or police investigation;

make a copy for the purpose of restoration;

use digital technology to deliver an interlibrary loan copy of a


copyright-protected work.

Provided a replacement copy is not commercially available in a medium


and of a quality that is appropriate for these purposes, school libraries
can also:

make a copy of a work if the original is rare or unpublished and


is deteriorating, damaged, or lost;

make a copy of a fragile document or recording for on-site


consultation if the original cannot be viewed, handled, or
listened to because of its condition;

make a copy if the original is in an obsolete format, or is in danger


of becoming obsolete, or the technology to use the original is
unavailable or is in danger of becoming obsolete.

Copyright Matters!

12. Can teachers play a sound

recording or turn on a radio for


students to listen to, or turn on a
television for students to watch?

Yes. You can play sound recordings and turn on televisions and radios in
the classroom, subject to all of the following conditions:

it must take place on the premises of an educational institution;

it must be for educational or training purposes;

it must not be for profit;

it must take place before an audience consisting primarily of


students of the educational institution, persons acting under its
authority, or any person who is directly responsible for setting a
curriculum for the educational institution; and

it must not involve a motive of gain.

This users right does not apply to recorded radio and television
programs, but only to playing radio and television programs while they
are being transmitted (by over-the-air broadcast, cable, satellite, or over
the Internet).
Where music is performed for a non-educational objective, SOCAN and
Re:Sound tariffs apply. Examples that require royalty payments include
music performed for extracurricular activities such as an assembly,
background music, a school dance, or a fashion show. Current
statements of applicable fees can be found on the SOCAN Web site at
www.socan.ca and on the Re:Sound Web site at www.resound.ca.

Copyright Matters!

13. Can students perform a work

protected by copyright, such as a


play, on school premises?

Yes. An example is the performance of a play in a drama class. The same


five conditions as those cited for playing sound recordings, listening
to the radio, or watching television listed in the answer to the previous
question must be met before this users right applies.

14. Can music be performed without

the copyright owners permission?

The Copyright Act permits educational institutions to perform music,


whether recorded or live, without payment or permission from the
owner of the copyright. A person acting under the authority of a nonprofit educational institution can:

perform a musical work live if the performance is primarily by


students of the educational institution;

play sound recordings containing a musical work; and

play radio and television programs containing a musical


work while the program is being transmitted (by over-the-air
broadcast, cable, satellite, or over the Internet).

The following conditions apply. The performance must:


take place on the premises of an educational institution;

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Copyright Matters!

be for educational or training purposes;

not be for profit; and

take place before an audience consisting primarily of students of


the educational institution, persons acting under its authority, or
any person who is directly responsible for setting a curriculum
for the educational institution.

The Copyright Act permits the public performance of music in schools


when it is in furtherance of an educational object. Performances that
are not in furtherance of an educational object must be authorized by
the copyright owner, or by a collective that represents the owner.
The following uses of live and recorded music are permitted by the
Copyright Act and therefore do not require permission and payment:

in school assemblies (e.g., a recording of O Canada);

by a student in a presentation to other students, teachers,


assessors, or parents (e.g., as part of a presentation during
music class);

in demonstration activities by students, primarily for other


students, teachers, assessors, or parents, and for which any
admission fee charged covers costs but does not make a profit
(e.g., a concert by the school choir, gymnastic routines, shows
by school bands);

during school hours for teaching/learning (e.g., music/dance/


dramatic arts classes); and

before and after school, and during recess, if the use is for
educational purposes (e.g., school radio operated by students
for credit and supervised by a teacher).

Copyright Matters!

11

The following uses of live and recorded music are not permitted by the
Copyright Act and therefore require permission and payment:

at school dances;

at school sporting events;

while people are on hold when they telephone the school;

at an event where the admission fee is intended to make a profit;


and

on school premises for no other reason than as background


music (e.g., in the classroom, cafeteria, halls, over the PA system,
at school events such as fairs, carnivals, or sociocultural events).

SOCAN and Re:Sound can provide licences to schools and school boards
across Canada. Applicable rates can be found on the SOCAN Web site
at www.socan.ca and on the Re:Sound Web site at www.resound.ca.
The following uses of live and recorded music are not permitted by the
Copyright Act, and SOCAN and Re:Sound cannot provide licences to
schools and school boards for music used:

in a play performed live (e.g., a drama classs production of My


Fair Lady). In this case, the educational institution must obtain
copyright authorization from a theatrical agent;

in performances on school premises by outside performers (e.g.,


invited singers, magicians, etc.). In this case, obtaining copyright
authorization is the responsibility of the outside performers; and

in activities held in school facilities that are rented or are


provided free of charge to outside groups. In this case, obtaining
copyright authorization is the responsibility of the outside
group.

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Copyright Matters!

The factors to consider when determining whether music use requires


permission include:

Did the music use occur during school hours?

Will the student be graded on the activity involving the music


use?

Does the music use involve a demonstration by a student or


teacher for other students, teachers, assessors, or parents?

Is it reasonable to consider the music use to be for educational


purposes? The phrase educational purposes is not defined in
the Copyright Act but can be described as an activity that is
planned and where the objective is for students to meet one or
more subject or program outcome.

Was the music used on school premises?

If admission was controlled, was it free?

Was the music use for a non-profit purpose?

If the answer to the majority of these questions is yes, then the


performance of the music is most likely permitted by the Copyright Act.

Copyright Matters!

13

15. Can students and teachers use


copyright-protected works to
create new works?

The Copyright Act contains a users right permitting anyone, not just
students and teachers, to use copyright-protected works to create
new works. This users right is referred to in the Copyright Act as noncommercial user-generated content. This users right can be found
in section 29.21 of the Copyright Act as amended by the Copyright
Modernization Act. The following conditions apply to the creation of
non-commercial user-generated content:
1.

It can be used for only non-commercial purposes.

2. The original source must be mentioned, if it is reasonable to do so.


3. The original work used to generate the content must have been
acquired legally.
4. The resulting user-generated content does not have a substantial
adverse effect on the market for the original work.
This users right permits students to use copyright-protected works to
create videos, DVDs, or mash-ups, as long as all four conditions above
are met.
The users right permits user-generated content created under provision
of the Copyright Act to be disseminated. Dissemination includes uses
such as posting a video to YouTube or a Web site.

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Copyright Matters!

16. Can teachers copy programs from


radio or television?

Yes. An educational institution or a person acting under its authority


may make a single copy of a radio or television program and show that
copy provided the following four conditions are met:
1.

The copy must be made at the time the program is aired by the
broadcaster or communicated over the Internet.

2. The showing of the single copy must be for an audience consisting


primarily of students.
3. The showing of the single copy must be for educational or training
purposes.
4. The showing of the single copy must take place on the premises
of the educational institution.

17. Can teachers show an audiovisual


work (such as a DVD or video)
on school premises without
infringing copyright?

The Copyright Act permits showing an audiovisual work such as a DVD


or video on the premises of an educational institution provided the
following five conditions are met:

Copyright Matters!

15

1.

The showing must take place on the premises of an educational


institution.

2. The showing must be for an audience consisting primarily of


students, instructors, or persons directly responsible for setting
a curriculum.
3. The showing must be for educational or training purposes.
4. The showing must not be for profit.
5. The copy shown must not be infringing or the person responsible
for the performance has no reasonable grounds to believe that it
is an infringing copy.
If all five conditions listed above are met, an audiovisual work may be
shown for educational purposes without permission from the copyright
owner and without the payment of royalties pursuant to section 29.5(d)
of the Copyright Act.
Teachers can show audiovisual works purchased or rented from a retail
store, a copy borrowed from the library, a copy borrowed from a friend,
or a YouTube video.
Showing audiovisual works for non-educational purposes, such as
fundraising or a family movie night, requires permission and the payment
of copyright royalties.
Showing movies from subscription services in the classroom is
governed by the terms of the agreement between the subscriber and
the subscription service. If the agreement provides that use is limited to
personal or household use, for example, then classroom use is not
permitted.

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Copyright Matters!

18. Can teachers copy an audiovisual


work at home and show it in the
classroom?

No. Teachers cannot copy an audiovisual work at home and then show it
in the classroom. Teachers can, however, show a legally obtained copy
in the classroom. A legally obtained copy includes a copy purchased
or rented from a retail store, a copy borrowed from the library, a copy
borrowed from a friend, or a YouTube video.

19. Can lessons be streamed live

to students or recorded and made


available on-line for students at a
time of their choosing?

Yes. Educational institutions can transmit lessons to students in real


time over the Internet or make a recording of a lesson available on-line.
For example, a student in one school is able to access an on-line course
containing copyright-protected material offered in a different school.
The student is permitted to make a copy of the lesson and keep the
copy until 30 days after the final evaluation (final report card) is received.
Both the student and the educational institution are required to destroy
any recording of copyright-protected material contained in an on-line
lesson within 30 days after the students who are enrolled in the course
receive their final evaluations.

Copyright Matters!

17

20. Can teachers copy computer

software for educational use?

Owners of legal copies of computer programs may make a single


reproduction of these programs in only two situations:
1.

An owner of a legitimate copy of a computer program may make


one backup copy of that program. The person must be able to
prove that the backup copy is erased as soon as he or she ceases
to be the owner of the copy of the computer program from which
the backup was made.

2. An owner of a legitimate copy of a computer program may also


make a single copy of that program by adapting, modifying, or
converting the computer program or translating it into another
computer language, provided that:
(i) the reproduction is essential for the compatibility of the
program with a particular computer;
(ii) the reproduction is solely for the persons own use; and
(iii) the copy is erased when the person ceases to be the owner
of the copy of the program from which the copy was made.

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Copyright Matters!

21. Can teachers and students copy


from the Internet?

Yes. Educational institutions, teachers, and students may save,


download, and share publicly available Internet materials, as well as use
that material in the classroom and communicate it to students or others
within their education circle.
Publicly available materials are those posted on-line by content
creators and copyright owners without any technological protection
measures, such as a password, encryption system, or similar technology
intended to limit access or distribution, and without a clearly visible
notice prohibiting educational use.

Routine classroom uses may be made of publicly available Internet


materials, such as incorporating on-line text or images into homework
assignments, performing music or plays on-line for peers, exchanging
materials with teachers or peers, or reposting a work on a restrictedaccess course Web site.
To encourage copyright awareness and respect in all circumstances,
students and educators are required to cite the source of the Internet
materials they use.

Copyright Matters!

19

22. Can teachers and students

break digital locks to use


copyright-protected materials
they have the legal right to use?

No. A digital lock is a technological protection measure (such as


encryption or a password) that restricts the ability of users of digital
content from sharing or copying the content. The Copyright Act
prohibits breaking a digital lock even for educational uses that are
otherwise permitted by the Copyright Act. For example, the encryption
on most commercial DVDs, or the serial-key validation required by many
software programs, protects these DVDs and software programs from
unauthorized use. These protections cannot be broken even if the
purpose of the use is otherwise allowed.

23. Are student-created works


protected by copyright?

Yes. Any original work created by a student whether in the form of


an essay, a video or DVD, a sound recording, Web site, or art work
is protected. The student or if the student is a minor, the students
parent or legal guardian must authorize the further use of a students
work, such as its use in a school publication, a teaching workshop, a
student exemplar, or in a Web posting.

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Copyright Matters!

24. Where can I get more

information on copyright?

Copyright can be, and often is, very complicated. This booklet provides
the basics to point you in the right direction toward increasing your own
copyright awareness. Exploring additional resources to obtain more
in-depth information on the topics that are covered in this booklet will
increase your knowledge. Awareness of copyright is important because
you are educating the copyright owners and users of tomorrow. More
detailed information is available from the following sources:
WEB SITES
A Web site by the Copyright Consortium of the Council of Ministers of
Education, Canada (CMEC), that helps teachers assess when they can
use copyright-protected materials without getting copyright permission
under the fair dealing provision of the Copyright Act.
www.copyrightdecisiontool.ca
The Council of Ministers of Education, Canada (CMEC) site contains an
electronic version of Copyright Matters! and information about CMECs
copyright activities.
www.cmec.ca/copyrightinfo
The Canadian School Boards Association
www.cdnsba.org/resources/canadian-copyright-reform
The Canadian Teachers Federation
www.ctf-fce.ca
The Department of Canadian Heritage site on copyright issues and
developments
www.canada.ca/en/canadian-heritage.html

Copyright Matters!

21

The 2Learn.ca Education Societys Your Digital Presence site. A


useful site on obtaining copyright permissions, written from a teachers
perspective.
www.2learn.ca/ydp/copyrightabout.aspx
Canadas Copyright Act
www.laws-lois.justice.gc.ca/eng/acts/C-42/index.html
Canadian Intellectual Property Office. A guide to copyright basics
www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home
TED: Ideas Worth Spreading. Thousands of free video lectures on a wide
variety of subject matter that are usable by teachers in the classroom.
www.ted.com
Canadian Library Association. Copyright tools for librarians and
educators
www.cla.ca/resources/copyright-information
Library and Archives Canada. A guide to citing copyright materials, tools
for detecting plagiarism, and other copyright-related links for educators
www.collectionscanada.gc.ca/notices/016-200-e.html
Canadian Teacher Magazine. Links to freely available educational
resources
www.canadianteachermagazine.com/freeresources.html

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Copyright Matters!

PRINT RESOURCES
Dryden, J. (2001). Demystifying copyright: A researchers guide to
copyright in Canadian libraries and archives. Ottawa: Canadian Library
Association. ISBN: 0-0-88802-298-0, $21.00.
Harris, E.L. (2012). Canadian Copyright Law, 4th ed. Hoboken, NJ: Wiley.
ISBN-13: 978-1118078518, $39.95.
Murray, L.J., & Trosow, S.E. (2013). Canadian copyright: A citizens guide.
Toronto: Between the Lines. ISBN-13: 978-1771130134, $20.56.

Copyright Matters!

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